Mock Constitution
Draft/Comments Phase
(What is this?)
Index
Preamble
Article I: Declaration of Rights
Article II: Distribution of
Powers of Government
Article III: Legislative Branch
Article IV: Representation
Article V: Executive Branch
Article VI: Judicial Branch
Article VII: Suffrage and Elections
Article VIII: Taxation and
Debt Limitation
Article IX: Local Government
Article X: Education
Article XI: Public Officers
Article XII: Impeachment
Article XIII: Amending the Constitution
Article XIV: Transition Schedule
Entire Draft
Section 1. Judicial power.
(a) Except as otherwise provided by this Constitution, the judicial power of the state shall be vested exclusively in a unified judicial system which shall consist of a supreme court, a court of criminal appeals, a court of civil appeals, a trial court of general jurisdiction known as the circuit court, a trial court of limited jurisdiction known as the district court, a probate court and such municipal courts as may be provided by law.
(b) The legislature may create judicial officers with authority to issue warrants and may vest in administrative agencies established by law such judicial powers as may be reasonably necessary as an incident to the accomplishment of the purposes for which the agencies are created.
Section 2. The supreme court.
(a) The supreme court shall be the highest court of the state and shall consist of one chief justice and such number of associate justices as may be prescribed by law.
(b) The supreme court shall have original jurisdiction (1) of cases and controversies as provided by this Constitution, (2) to issue such remedial writs or orders as may be necessary to give it general supervision and control of courts of inferior jurisdiction, (3) to offer advisory opinions to the Governor and Legislature concerning proposed legislation and (4) to answer questions of state law certified by a court of the United States.
(c) The supreme court shall have such appellate jurisdiction as may be provided by law.
Section 3. Courts of appeals.
(a) The court of criminal appeals shall consist of such number of judges as may be provided by law and shall exercise appellate jurisdiction under such terms and conditions as shall be provided by law and by rules of the supreme court.
(b) The court of civil appeals shall consist of such number of judges as may be provided by law and shall exercise appellate jurisdiction under such terms and conditions as shall be provided by law and by rules of the supreme court.
(c) The court of criminal appeals and the court of civil appeals shall have no original jurisdiction except the power to issue all writs necessary or appropriate in aid of appellate jurisdiction of the courts of appeals.
(d) The court of criminal appeals shall have and exercise original jurisdiction in the issuance and determination of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction. Said court shall have authority to issue writs of injunction, habeas corpus and such other remedial and original writs as are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction; to punish for contempts by the infliction of a fine as high as one hundred dollars, and imprisonment not exceeding ten days, one or both, and to exercise such other powers as may be given to said court by law.
Section 4. Circuit court.
a) The state shall be divided into judicial circuits. For each circuit, there shall be one circuit court having such divisions and consisting of such number of judges as shall be provided by law.
(b) The circuit court shall exercise general jurisdiction in all cases except as may otherwise be provided by law. The circuit court may be authorized by law to review decisions of state administrative agencies and decisions of inferior courts. It shall have authority to issue such writs as may be necessary or appropriate to effectuate its powers, and shall have such other powers as may be provided by law.
Section 5. District court.
The district court shall be a court of limited jurisdiction and shall exercise uniform original jurisdiction in such cases, and within such geographical boundaries, as shall be prescribed by law, provided that the district court shall hold court in each county seat and at such other places as prescribed by law. The district court shall have jurisdiction of all cases arising under ordinances of municipalities in which there is no municipal court and shall hold court in each incorporated municipality of a population of 1000 or more where there is no municipal court at places prescribed by law.
Section 6. Probate court.
There shall be a probate court in each county which shall have general jurisdiction of orphans’ business, and of adoptions, and with power to grant letters testamentary, and of administration, and of guardianships, and shall have such further jurisdiction as may per provided by law, provided, that whenever the circuit court has taken jurisdiction of the settlement of any estate, it shall have power to do all things necessary for the settlement of such estate, including the appointment and removal of administrators, executors, guardians, and trustees and including action upon the resignation of either of them.
Section 7. Municipal courts.
All municipal courts shall have uniform original jurisdiction limited to cases arising under municipal ordinances as prescribed by law. Judges of municipal courts shall be licensed to practice law in the state and have such other qualifications as the legislature may prescribe. A municipal judge may serve as a judge of more than one municipal court. Expenses of municipal courts and compensation of municipal judges shall be paid in a manner prescribed by law notwithstanding the provisions of section 10 of this article. Municipal judges shall be appointed and vacancies filled by the governing body of the municipality, in accordance with uniform terms, conditions and procedures as may be provided by law, notwithstanding the provisions of sections 14, 15 and 16 of this article. The prohibited activities of section 9(a) shall not be applicable to a judge of a municipal court. The governing body of a municipality shall have the right to elect at any time to abolish the municipal court within its limits. If such election is exercised, the jurisdiction of the court abolished shall be transferred to the district court of the district in which the municipality is located. The governing body of a municipality, may, at its election, re- establish a municipal court after appropriate notice.
Section 8. Qualifications of judges.
(a) Judges of the supreme court, courts of appeals, circuit court, district court, probate court, and municipal court shall be licensed to practice law and members in good standing of the Alabama State Bar as of the date of qualifying and have such other qualifications as the legislature may prescribe A probate judge in office on the effective date of this article shall be qualified to serve and may remain in office, during that term and any successive elected terms, until such time as he or she vacates the office, except for absences permitted for by law.
(b) Except as provided in subsection (a), a judge of the District Court, Probate Court, or Municipal Court shall have been admitted to the Alabama State Bar for a minimum of three years, a judge of the Circuit Court for at least five years, and a judge of the Alabama Court of Civil Appeals, the Alabama Court of Criminal Appeals and the Supreme Court for at least ten years at the time of that person’s qualifying for election, appointment, or other selection.
Section 9. Prohibited activities.
(a) No judge of any court of this state shall, during his or her continuance in office, engage in the practice of law or receive any remuneration for his or her judicial service except the salary and allowances authorized by law.
(b) No judge shall seek or accept any nonjudicial elective office, or hold any other office of public trust, excepting service in the military forces of the state or federal governments.
(c) The supreme court shall adopt rules of conduct and canons of ethics, not inconsistent with the provisions of this Constitution, for the judges of all courts of this State.
Section 10. Judicial compensation.
(a) A state judicial compensation commission is hereby created which shall recommend the salary and expense allowances to be paid from the state treasury for all the judges of this state. The commission shall consist of five members; one shall be appointed by the governor, one by the president of the senate, one by the speaker of the house, and two by the governing body of the Alabama state bar.
(b) Members of the judicial compensation commission shall serve for terms of four years. Any vacancy on the commission shall be filled in the same manner in which such position was originally filled. The legislature shall appropriate sufficient funds for the expenses of the commission.
(c) No member of the commission shall hold any other public office, or office in any political party, and no member of the commission shall be eligible for appointment to a state judicial office so long as he or she is a member of the commission and for two years thereafter.
(d) The commission shall submit a report to the legislature at any time within the first five calendar days of any session. The recommendations of the commission shall become law upon confirmation by a joint resolution or such recommendations may be altered by an act of the legislature at the session to which the report is submitted. The compensation of a judge shall not be diminished during his official term.
Section 11. Administration.
The chief justice of the supreme court shall be the administrative head of the judicial system. He or she shall appoint an administrative director of courts and other needed personnel to assist him with his administrative tasks. The chief justice may assign appellate justices and judges to any appellate court for temporary service and trial judges, supernumerary justices and judges, and retired trial judges and retired appellate judges for temporary service in any court. Adequate and reasonable financing for the entire unified judicial system shall be provided. Adequate and reasonable appropriations shall be made by the legislature for the entire unified judicial system, exclusive of municipal courts. The Chief Justice of the Supreme Court shall submit annual requests to the Legislature for appropriations for the Unified Judicial System, exclusive of the Municipal Courts.
Section 12. Power to make rules.
The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein. These rules may be changed by a general act of statewide application.
Section 13. Number of circuit and district judges.
(a) The supreme court shall establish criteria for determining the number and boundaries of judicial circuits and districts, and the number of judges needed in each circuit and district. If the supreme court finds that a need exists for increasing or decreasing the number of circuit or district judges, or for changing the boundaries of judicial circuits or districts, it shall, at the beginning of any session of the legislature, certify its findings and recommendations to the legislature.
(b) If a bill is introduced at any session of the legislature to increase or decrease the number of circuit or district judges, or to change the boundaries of any judicial circuit or district, the supreme court must, within three weeks, report to the legislature its recommendations on the proposed change. No change shall be made in the number of circuit or district judges, or the boundaries of any judicial circuit or district unless authorized by an act adopted after the recommendation of the supreme court on such proposal has been filed with the legislature.
(c) An act decreasing the number of circuit or district judges shall not affect the right of any judge to hold his office for his full term.
Section 14. Election of judges.
All elected judges shall be elected by vote of the electors within the territorial jurisdiction of their respective courts. The legislature shall provide for the election of all circuit, district, and probate judges on a non-partisan basis, without designation of any political affiliation. The legislature shall provide for the selection of justices of the supreme court and judges of the court of criminal appeals and the court of civil appeals by either a non-partisan public election, without designation of any political affiliation or by merit selection with retention election, on a non-partisan basis, without designation of any political affiliation. Nominations for judicial office shall be in the manner prescribed by law. Any incumbent judge may become a candidate to continue in office in the manner prescribed by law.
Section 15. Vacancies in judicial office.
The office of a judge shall be vacant if she or he dies, resigns, retires, or is removed. Vacancies in any judicial office shall be filled by appointment by the governor who will select from a pool of names provided by a judicial appointment commission for each circuit. A judge, other than a probate judge, appointed to fill a vacancy, shall serve an initial term lasting until the first Monday after the second Tuesday in January following the next general election held after she or he has completed one year in office. At such election such judicial office shall be filled for a full term of office beginning at the end of the appointed term.
Section 16. Tenure of office.
(a) The term of office of each judge of a court of the judicial system of this state shall be six years; provided, however, that the legislature may alter by law the length of the terms of the judges of any court of this state, but it may do so only prospectively, and may not lengthen the term of any sitting judge..
(b) A law reducing the number of judges of the supreme court or of a court of appeals shall be without prejudice to the right of the judges affected to seek retention in office. The reduction shall become effective when a vacancy in the affected court occurs.
Section 17. Retirement.
The legislature shall provide by law for the retirement of judges, including supernumerary judges, with such conditions, retirement benefits, and pensions for them and their dependents as it may prescribe. No person shall be elected or appointed to a judicial office after reaching the age of seventy years, provided that a judge over the age of seventy may be appointed to the office of supernumerary judge if she or he is not eligible to receive state judicial retirement benefits.
Section 18. Judicial Inquiry Commission.
(a) A Judicial Inquiry Commission is created consisting of nine members. The Supreme Court shall appoint one appellate judge who shall not be a Justice on the Supreme Court; the Circuit Judges’ Association shall appoint two judges of the circuit court; the Governor shall appoint three persons who are not lawyers and one district judge to serve as members of the Commission and who shall be subject to Senate confirmation before serving. The governing body of the Alabama State Bar shall appoint two members of the state bar to serve as members of the commission.. The commission shall select its own chair. The terms of the members of the commission shall be four years. A vacancy on the commission shall be filled for a full term in the manner the original appointment was made.
(b) The commission shall be convened permanently with authority to conduct investigations and receive or initiate complaints concerning any judge of a court of the judicial system of this state. The commission shall file a complaint with the Court of the Judiciary in the event that a majority of the members of the commission decide that a reasonable basis exists, (1) to charge a judge with violation of any Canon of Judicial Ethics, misconduct in office, failure to perform his or her duties, or (2) to charge that the judge is physically or mentally unable to perform his or her duties. All proceedings of the commission shall be confidential except the filing of a complaint with the Court of the Judiciary. The commission shall prosecute the complaints.
(c) The Supreme Court shall adopt rules governing the procedures of the commission.
(d) The commission shall have subpoena power and authority to appoint and direct its staff. Members of the commission who are not judges shall receive per diem compensation and necessary expenses; members who are judges shall receive necessary expenses only. The Legislature shall appropriate funds for the operation of the commission
Section 19. Court of the Judiciary.
(a) The Court of the Judiciary is created consisting of one judge of an appellate court, other than the Supreme Court, who shall be selected by the Supreme Court and shall serve as Chief Judge of the Court of the Judiciary; two judges of the circuit court, who shall be selected by the Circuit Judges’ Association; and one district judge who shall be selected by the District Judges’ Association. Other members of the Court of the Judiciary shall consist of two members of the state bar, who shall be selected by the governing body of the Alabama State Bar; and, three persons who are not lawyers who shall be appointed by the Governor. Members appointed by the Governor shall be subject to Senate confirmation before serving. The court shall be convened to hear complaints filed by the Judicial Inquiry Commission. The court shall have authority, after notice and public hearing (1) to remove from office, suspend without pay, or censure a judge, or apply such other sanction as may prescribed by law, for violation of a Canon of Judicial Ethics, misconduct in office, failure to perform his or her duties, or (2) to suspend with or without pay, or to retire a judge who is physically or mentally unable to perform his or her duties.
(b) A judge aggrieved by a decision of the Court of the Judiciary may appeal to the Supreme Court. The Supreme Court shall review the record of the proceedings on the law and the facts.
(c) The Supreme Court shall adopt rules governing the procedures of the Court of the Judiciary.
(d) The Court of the Judiciary shall have power to issue subpoenas. The Legislature shall provide by law for the expenses of the court.
(e) The procedure outlined in Sections 18 and 19 shall be the exclusive means by which a judicial officer of any court of this state may be disciplined or removed from office during that judge’s term of office, whether in office as a result of election or appointment.
Section 20. Disqualification.
A judge shall be disqualified from acting as a judge, without loss of salary, while there is pending (1) an indictment or an information charging her or him in the United States with a crime punishable as a felony under a state or federal law, or (2) a complaint against her or him filed by the judicial inquiry commission with the court of the judiciary.
Section 21. District attorneys, clerks, court revenue.
(a) A district attorney for each judicial circuit shall be elected by the qualified electors of those counties in such circuit. Such district attorney shall be licensed to practice law in this state and shall, at the time of his or her election and during his or her continuance in office, reside in his or her circuit. His or her term of office shall be for six years and he or she shall receive such compensation as provided by law. Vacancies in the office of district attorney and in his or her staff shall be filled as provided by law.
(b) Clerks of the circuit courts shall be elected by the qualified electors in each county for a term of six years. Vacancies in the office of clerk of the circuit court shall be filled by the judge or judges of the circuit court who have jurisdiction over the county in which the office of clerk of the circuit court is located.
(c) Persons elected to the position of constable to assist the courts of the state as provided by law shall be subject to the same restrictions, rights and limitations as are specified in Article XII Section 1 of this Constitution. No law shall prohibit the receipt of fees for the performance of official duties of said position while holding any other elected or appointed office.
(d) The revenue from fines, forfeitures and court costs produced in district courts from the exercise of jurisdiction under municipal ordinances shall be apportioned between the municipality and the state as shall be provided by law.
Section 22. Continuation of courts, district attorneys, clerks.
(a) All courts not herein authorized which are in existence at the time this article becomes effective shall retain their powers for four years, unless sooner terminated by act of the legislature.
(b) All judges of the supreme court, court of criminal appeals, court of civil appeals circuit courts, district courts, and probate courts shall retain their offices for the remainder of their respective terms, and any subsequent terms to which a sitting probate judge is selected, pursuant to the provisions of Section 8
(c) All justices of the supreme court in office when this article becomes effective shall be justices of the supreme court. All judges of the court of criminal appeals shall be judges of the court of criminal appeals. All judges of the court of civil appeals shall be judges of the court of civil appeals. All circuit judges in office when this article becomes effective shall be judges of the circuit courts. All district judges in office when this article becomes effective shall be judges of the district courts. All probate judges in office when this article becomes effective shall be judges of the probate courts. All city judges who are in office when this article becomes effective shall continue to be judges of their respective courts. All present city courts shall continue to function as provided by law for four years.
(d) In the event a city ceases to have a city or municipal court, all judges of any city court in this state in cities which have more than one such judge at the time of approval of this constitutional amendment by the legislature and on the date of the establishment of the district court, if otherwise qualified under the provisions of this article, shall be commissioned judges of the district court. Each such judge accepting commission as a district judge shall serve an initial term lasting until the first Monday after the second Tuesday in January following the next general election after he has completed three years in office as a district judge. At such election said judicial office shall be filled for a full term of office beginning at the end of the term for which such judge was commissioned.
(e) All district attorneys of any circuit of this state, who are qualified under the provisions of this article, and who are holding office at the time of the approval of this constitutional amendment by the electors of the state, shall retain their offices for the remainder of their respective terms.
(f) All clerks of the circuit court of this state, who are holding office at the time of the approval of this constitutional amendment by the electors of the state, shall retain their offices for the remainder of their respective terms.
(g) Except to the extent inconsistent with the provisions of this article, all provisions of law and rules of court in force on the effective date of this article shall continue in effect until superseded in the manner authorized by the Constitution.
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Beyond the fact that I simply disagree with virtually everything contained in Section 14 of this article, even if I agreed with the notion of “non-partisan” elections (i.e., interest-group driven elections without the guise of party affiliation) or “merit” selection (i.e., back-room political machinations), I think it is very, very dangerous to leave to the legislature the determination of judicial selection. I would hate to see the method of judicial selection switch back and forth depending on which idea sounds best at the time, or, more dangerously, which political party held the legislature at the time and advocated a particular form of election. Just spell out a single method for selecting appellate judges and don’t leave it to another branch of government to do that.
By the way, isn’t it a little strange that it was only after Republicans began winning appellate judicial races that folks like you guys and gals started clammoring for taking the politics out of the system? Partisan elections were just fine when the democrats controlled all of the appellate courts. Why isn’t it fine now that Republicans control all of the appellate courts?
Agree with (what I think) Lou is saying. Election of judges is stupid. Judges should be appointed by the executive. Judges are to be impartial, and their partiality is called into question when they’re worried about getting re-elected.
Apply federal system for circuit, appellate, supreme court judges: Executive appointment, senate approval.
I am pleased to see in section 14 that the legislature is given authority to provide for the selection of appellate judges either by popular election or by merit selection system. This gives a desirable leeway to the legislature to address the means of choosing appellate judges without having to amend the constitution.
I would agree with executive appointment, senate approval for all judges above the circuit level. However, in breaking away from the federal system, the judges should have a term. 6 years seems to be sufficient for this.
This article needs to do away with the election of judges. They should be appointed, subject to confirmation of the Senate, to a 10 year term without eligibility for another term. That way judges will be more likely to have the courage to make unpopular rulings without fear of de-election of not being reappointed.
Electing state-level judges should NOT be allowed.
Judges (Supreme court, court of appeals and circuit courts) should be appointed by the executive for no more than 6 years.
The legislature (I prefer uni-cameral) should confirm appointees – AND THAT IS ALL. Vesting any authority in judicial selections by the legislture beyond confirmation is replicating the shameful past we so much want to rid ourselves.
Pat D, the problem I have with your suggestion, though I do think it’s a legitimate one, is that when you remove a check on the judiciary (like, at the very least having to stand for a retention vote), the judiciary feels free to start making social policy that is not appropriately tethered to the law. Like, for example, Roe, Kelo, and a host of other poorly reasoned and policy-driven US Supreme Court decisions. (Even most of my liberal, pro-choice friends who understand constitutional law agree that Roe was a terrible decision that was motivated by politics and not based on the law, even though they believe that abortion should be legal as a matter of policy.) At the very least, we should make the judiciary subject to the will of the people in a broad, general way, as through a retention vote, which only the most egregious of judges seem to lose.
Article VI: Judicial Branch
Section 16: Tenure of Office
(a) The term of office of each judge of a court of the judicial system of this state shall be six years; provided, however, that the legislature may alter by law the length of the terms of the judges of any court of this state, but it may do so only prospectively, and may not lengthen the term of any sitting judge.
As it stands most judges are entitled to sit on the bench for 15 years and longer, that is not a six year term limit. Limits should be set and just like our governors, and our President they only get two rounds of a 4 year term, however, judges (circuit, and district) should not be entitled to more than the six years, it should really only be a four year term maximum no longer. I also feel that during their third year there should be a special election held to determine whether or not the judge has done a good job, and this is called a retention election where we the people decide if the judge should remain on the bench or not.
Specifying that judicial elections be nonpartisan is a step in the right direction. I would like to see us go to something like the Missouri System, in which a commission nominates judges to the higher courts, the governor appoints, and the people retain, or remove, by vote after an initial term of service. I suppose the convention thought we were not ready to go that far.
Great Suggestion!! Charlotte Ward
I think Alabama is much ready for a lot of things, and if we do not “kick it up a notch” our judicial system will not survive. Other states, even counties within Alabama are farther ahead in times than even the 19th Circuit, and the people within this circuit will pledge to that. The people are more important than our judicial branch really cares to realize. The people are making the judicial branch prosper through our lives, our hopes, our dreams, and it’s not right. How many judges do you know who reside in a trailer? (0) The more things are being waded out in the court system, the more money we are putting into their bank accounts just trying to find justice, and it’s not right that any of us should have to deal with this type of system. Alabama could actually give the government back what the banks got in the bail out with what citizens are paying for attorneys, court costs, appeals, supreme court, it goes on and on. Without us the judicial branch would not survive, yet no one wants to speak up on behalf of the people. Without a stronger judicial branch, this branch will remain the most corrupted. “Fair, and Impartial” courts is what everyone really wants, and needs. There are certain people who don’t understand because they have not had to deal with the justice system. The more money you have the more justice you can afford. No Alabamian should ever have to pay for justice. This branch is very important, but it can fail within the blink of an eye if we do not grab hold of what is right, and that is having fair courts. Do you want a judge to decide on an issue without having a trial? No trial, no evidence submitted, no opportunity to be heard…None of us want this, it is one sided, ex parte, and no judge has the right to treat anyone this way. We cannot give this branch our lives anymore than we already have, until you can really see, touch, smell, hear, breathe the actual heartache I have felt through this branch you won’t understand, but you can close your eyes and imagine never being heard in a court of law. I don’t want to see anyone else go through this, and this is why I speak about this branch so boldly. The people, and their families are the most important, and will be the main characters to feel the judicial wrath.
Most of this article looks good to me. Establishing minimal qualifications for judges is a good step. I don’t feel that non-partisan elections address any problems effectively. The problem with elected judges has to do with the need to finance there campaigns this creates judges who are beholden to their contributors. I don’t see how non-partisan elections solve that problem. Campaign finance reform and stricter rules regarding recusal would help. The least bad solution is probably one that has been proposed in other comments which is to have the Governor appoint judges subject to legislative approval with retention elections to provide some kind of accountability to the public.
I have been a Real Estate Broker for over 30 years.
Alabamas 1 year right of redemption on foreclosed properties is ridiculous, as well as being the longest of any state. While I support a right of redemption, it should be for a far shorter period.
Our neighboring state of Florida for instance has a ninety day right of redemption. A right of redemption is a title cloud and imposes undue hardship and expense on purchasers of foreclosed properties. It has also encouraged in my view, a racket for insurers to charge an outrageous premium of 1% of the purchase price for an indemnity bond.
District Attorneys should be required to present in court, all evidence presented to the Grand Jury. as it now stands the DA’s can say anthing they want to in order to obtain an indightment and not produce this evidence in court.
John Neville you make a good statement, but have you really had to deal with the judicial branch much? Have you ever had to file a complaint for Judicial Misconduct, and if so, How are far did it go, did they investigate the judge, was he/she held accountable for the misconduct? Or Did you receive a letter from the Judical Inquiry saying what he/she did was okay? Better yet has a judge ever let someone complain about you in court, give them what they wanted, and not even allow you a hearing? If any of this has happened to you, I will assure everyone here that you would not be taking this issue lightly. Judicial Misconduct is a very serious issue which needs to be addressed preferably by people who are not lawyers and judges. I don’t feel that any judicial misconduct should be viewed by those who willfully fail to see the wrong that it causes in peoples lives, and not to mention the overcrowded court system because people are still trying to seek justice. When judges fail to do their jobs properly it keeps the issues in the court system, and things do not get resolved this way which in fact overcrowds the courts.
Section 2(a) needs to set forth the number of justices to prevent court packing, ala FDR. One chief and 8 associates should be sufficient.
Section 14 is more proof of liberal bias. This Constitution is nothing more than a liberal wish list. Non-partisan elections are exactly what liberals want because they know that Alabamians are conservative by nature. They weren’t for non-partisan elections before the Democrats lost control of the judiciary, now suddenly they want them enshrined in the Constitution? There is absolutely no way to remove politics from judicial elections/appointments. It is far better for the people to know as much as they can about a judge — including his party affiliation. Section 14 should simply state that all judges of this State are to be elected in like manner as all other elected public officials.
I favor appointment of judges by the executive. Perhaps names could be supplied by a judicial selection commission to weed out political lackeys, and incompetents.
There is One message that keeps surfacing every 2000 years or so.
THE LAW OF NATURAL LIBERTY:
“All systems either of preference or of restraint, therefore, being thus
completely taken away, the obvious and simple system of natural liberty
establishes itself of its own accord. Every man, as long as he does not
violate “ the laws of justice”, is left perfectly free to pursue his own
interest his own way, and to bring both his industry and capital into
competition with those of any other man, or order of men.”2
THE FIRST DUTY OF THE SOVEREIGN
“THE second duty of the sovereign, that of protecting, as far as possible,
every member of the society from the injustice or oppression of every other
member of it or the duty of establishing an exact administration of justice”
THE NEW COVENANT
Article III, the Judiciary, puts in writing a check and balance on what the founders recognized as public enemy number one: the excesses and the evils of democracy without constraint; the passions, fears, and prejudices of the People.
Article III: All Constitution writing should be general and in the abstract.
Edmond Randolph: In the draught of a fundamental constitution, two things deserve attention:
1. To insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events, and
2. To use wimple and precise language, and general propositions, according to the example of the (several) constitutions of the several states. (For the construction of a constitution of necessarily differs from that of law)
Records of the Federal Convention, 1787
Therefore, I submit an alternative form of Article III, the Judiciary.
Article. III.
Section. 1. The judicial Power of the State of Alabama shall be vested in one supreme Court, and in such inferior Courts as the State Legislature may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under The Constitution of the United States of America, the Laws of the United States, and Treaties made, or which shall be made, under their Authority, and to the Laws of the State of Alabama; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State [Modified by Amendment XI]; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State subdivision shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the State Legislature shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State subdivision where the said Crimes shall have been committed; but when not committed within any State subdivision, the Trial shall be at such Place or Places as the Legislature may by Law have directed.
Section. 3. Treason against the State of Alabama shall consist only in levying War against the State, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Legislature shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
SUMMARY:
Leave the exact structure to the People through their representatives. Remember that time and events alter the detail but do not alter the essential security of our liberty. Section 2 will require more learned legal scholars, there being any available and willing to speak up for fear of the democracy, but it might work with out their help.
The principles from Edmond Randolph apply to all articles of constitution.
The People of the United States in the general do not understand that the Constitution of the United States of America secures their liberty, not only from federal oppression, but also from any intermediate government established between their feet and the Federal Central Government. Until we understand and demand, nothing will change.
This mistake in structure colludes the three branches by a democracy of the monied interest ONLY. Without a check on the democratic parts of government neither a man’s natural liberty nor his property are secured; but for the monied interest controlling the passions and fear of the people.
Section 14. Election of judges.
All elected judges shall be elected by vote of the electors within the territorial jurisdiction of their respective courts. The legislature shall provide for the election of all circuit, district, and probate judges on a non-partisan basis, without designation of any political affiliation. The legislature shall provide for the selection of justices of the supreme court and judges of the court of criminal appeals and the court of civil appeals by either a non-partisan public election, without designation of any political affiliation or by merit selection with retention election, on a non-partisan basis, without designation of any political affiliation. Nominations for judicial office shall be in the manner prescribed by law. Any incumbent judge may become a candidate to continue in office in the manner prescribed by law.
“Our chief danger arises from the democratic parts of our constitutions. It is a maxim which I hold incontrovertible, that the powers of government exercised by the people swallow up the other branches. None of the constitutions have provided sufficient checks against the democracy.” Randolph, May 29, page 26-27
“The evils we experience flow from the excess of democracy. The people do not want virtue; but are the dupes of pretended patriots.” Gerry, May 31, page 48
“He admitted that we had been too democratic but was afraid we sd. incautiously run into the opposite extreme. We ought to attend to the rights of every class of the people. …to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest than of the highest orders of Citizens.” Mason, May 31, page 49
“…to be exempt from the passionate proceedings to which numerous assemblies are to be liable. …in tracing these evils to their origin every man had found it in the turbulences and follies of democracy: that some check therefore was to be sought for agst. this tendency…” Randolph, May 31, page 51
“He was for offering such a check as to keep p the balance, and to restrain, if possible, the fury of democracy.” Randolph, May 31, page 58
Article IV, paragraph 4 of the Constitution of the United States guarantees to each state and local government a check on the democratic part. Otherwise men who do not scruple in their ambitions and avarice in economic or moral causes will suppress the many for their benefit only. The process of “Advise and Consent”, Article II, Section 2, paragraph 2, provides the democratic part of appointment. The Senate confirms the Executive’s choice therefore ensuring that the duties of the sovereign accepted by the People as stated in “the Preamble” are understood. A Justice’s tenure is based on “keeping the sovereign People faithful to the Preamble and to the Enumeration” submitted to “Conventions of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification;…” September 17th, 1787
Ellery B. May III
“…our state’s current and sixth governing document. (That is why they set the deadline for public comments on 7/7—in honor of the state’s seventh constitution.)”
The “supreme governing document is the first, “The Constitution of the United States of America”.
The People ratified it, in conventions called by the State legislatures in 1788. This is an essential “due process” deemed necessary by the delegates at the Federal Convention of 1787.
The people established the security of their natural liberty and in the blessings forth coming.
Article I, section 8, gives to the federal government what the states and the people would be incapable or incompetent. [Since the ratification, the States and the people have surrendered to the federal government the "duties of the sovereign" that they are unwilling to take responsibility.]
Article I, section 9, states those rights that the People may not deny or take from each other.
Article I, section 10, list those rights that the States may not execute independent of the federal: piracy, issuing worthless script to trade as currency, etc. [The States have done both during the last eight years.]
The Bill of Rights further enumerates Article I, section 9, for the most part. Madison wanted to insert them directly. That did not happen.
The people, cities and, the counties require a “section” that gives to the state government what they would find themselves incompetent or incapable of executing efficiently and effectively consistent with their DUTY as the Sovereign.
Section 9 and the Bill of Rights stand on their own as supreme to the land: that includes Alabama.
Constitution is a document in the abstract, not a legislative document that lists the transient details of administration. The Judicial Section of the Mock Draft is a classic example of that confusion.
Get the abstract that establishes the independent jurist, a government based of the rule of law, JUSTICE as required by our sovereign duty [refer to the Preamble], not the machinations of democracy. Provide the authority for lower courts to the legislative arm: the needs of society change and are left to the arm that can respond. Rights do not change. The Constitution is where they a secured for all, not just by the transient fear and will of democracy. Essentially follow Article III of the Constitution of the United State adapted for the State.
Once the abstract puts in place the Constitution of the United States and therefore of the State, cut and paste the current document into legislative acts of the date of the New Constitution. The People will then go to work correcting the legislations of the past: the currently favored process of the legislators; they have some good points regarding the due process issues. Clarity of Preamble and the Due process of the Independent Jurist in the State Supreme Court will foster for the State “an exact administration of justice” making possible the laissez-faire economics of free market capitalism currently preached, but NOT practiced.
ARTICLE II: DISTRIBUTION OF POWERS OF GOVERNMENT
This Article is not appropriate: it is unnecessary. Either the construction of independence is provided in the State constitution or it is not secured by State constitution. The key to independence among and between the branches of government is the “Right to Speak without the fear of Censure” by the democratic parts. The State constitution either provides a man with scruple to hold the Constitution constant, or republican security is lost to democracy and its excesses: the passions, fears, and prejudices of the day.
A certain Professor Alexander Fraser Tytler, nearly two centuries ago, had this to say about Democracy:
” A Democracy cannot exist as a permanent form of Government. It can only exist until the voters (parties) discover they can vote themselves largess out of public treasury. From that moment on the majority always votes for the candidate promising the most benefits from the public treasury with the result that Democracy always collapses over a loose fiscal policy, always to be followed by a Dictatorship.”
“It is not to be denied that the portraits they have sketched of republican government were too just copies of the originals from which they were taken. If it had been found impracticable to have devised models of a more perfect structure, the enlightened friends to liberty would have been obliged to abandon the cause of that species of government as indefensible. The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients.” – Hamilton
Republican Form and the Separation of Powers
“The regular distribution of power into distinct departments;
the introduction of legislative balances and checks;
the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election:
these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided.” Federalist 9
When Alabamans realize and accept that “the independent jurist” is the key to securing their liberty from the excessive preference orientation of democracy that keeps the door to the State Treasury open to a few, then Alabamans can begin to resolve the issue of a modern laissez-faire commercial philanthropic republic where each man is free, so long as he does not harm his neighbors, to seek his sustenance where and how he pleases.
Proper construction of the three branches is what is required: the Executive, the Legislative, and the Judicial. The Judicial is the last hope to hold constant the Constitution as well as a State constitution.
If the Judiciary fails, what follows is called Anarchy. It is called exercising the Second Amendment of The Constitution.
A State constitution is spelled with a little “c”. End the capitalization of the State constitution. That will keep the focus on which one is the “Supreme Law of the Land”; which one takes president.
The Constitution has some simple phrases like “shall not make law”. When a State legislature passes a law where by Constitution the People in Conventions agreed not to make law, the independent jurist has taken an oath to nullify as Law what the legislators took an oath not to make Law.
Article. VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
The Source of Independent Branches of Government
“Good Behavior” is not the same as “For Life”.
Impeachment of Jurist is based on good behavior in their Opinions toward the State constitution, and toward the Constitution of the United States of America, as well as for high crimes and treason against the State.”
The Independent Jurist provides the Executive the necessary independent from the influence of the Legislature.
Due to the Independent Jurist the Executive is buffered from influence and censure by the democratic part, particularly from the Legislative Branch, when trying to hold the constitution Constant.
The legislature by having the power to impeach the executive must be restrained to a small group of exceptionally high causes for impeachment. Spitting, lying, or embarrassing the office are too frequent an event for most Executives.
Therefore, high crimes and treason are the only cause for legislative impeachment. The election process provides the People, not the Legislature, control over the Executive. The will of the Executive must be held constant to those who elected him. The presence of an Independent Jurist, holding Constant the constitution, allows him to remain true to the People when true to their constitution. The Legislature should not hold the will of the Executive by the constant threat of Impeachment
Frequent impeachment threats would nullify an Executive tenure and therefore the will of the People that elected the Executive.
NOTE: The Federal Convention of 1787 defined in the notes that “misdemeanor” is “high crimes or treason against a State”. Morris won, Madison lost, and the word “misdemeanor” stayed. Congress abused: Goldman Sachs harvested. We should educate ourselves, and our children, or the word “misdemeanor” should be avoided.
Impeachment of Senators and Representatives takes place by the democratic process as determined by the tenures of their office. Just as for the Executive. However, they are impeachable for the causes as the Executive, the Jurist of the Supreme Court, and the Jurist of lower courts if applicable: disregard for the constitution, or “high crimes or treason against the State.”
The Missouri Plan places the Executive and the People in “the strong hold grip” of the transient power class that dominates the legislative branch.
That class of people forgets some how that the coin can flip. A State constitution consistent with the Constitution of the United States of America will not jeopardize the existing capitals in Alabama. It will ask only that the existing capitals accept their duty as Sovereigns as they had agreed to in 1788. That could mean some short-term assistance on the tax front in the area of education until industry from a more skilled class of Alabaman can carry the weight through a more natural distribution of wealth and income as opposed to the current preference distribution of taxes.
However, the theory behind laissez-faire free market American Constitutionalism will more than offset some small tax amount now by the creation of wealth that follows. The current preference to primarily taxing lesser mortals has kept even the large Alabaman capitals meek compared to World Class standards.
The Missouri Plan, determined by the passions of the people after six years, imposes upon the Jurist the excesses and evils of democracy. A certain Professor Alexander Fraser Tytler, nearly two centuries ago, had this to say about Democracy: ” A Democracy cannot exist as a permanent form of Government. It can only exist until the voters (parties) discover they can vote themselves largess out of public treasury. From that moment on the majority always votes for the candidate promising the most benefits from the public treasury with the result that Democracy always collapses over a loose fiscal policy, always to be followed by a Dictatorship.”
Tenure of Supreme Court Jurist, based on “Good Behavior” is the check on democratic excesses. It is the only way “men who do not scruple in their ambition and avarice” can be checked within the democratic part of the constitutions.
I am however, after Rehnquist, thinking that an age limit for retirement might be appropriate considering the pharmaceuticals that have evolved since 1788.
We would hope that a man would step down when he recognizes that his cognitive abilities are going, or when his colleagues realize are going, going, GONE. Experience has shown otherwise. Maybe seventy years of age for a Justice.
One opinion has even come from a Jurist in his “death-bed”. History claims he was still breathing, but I was not there to confirm it. You will have to accept the tale as written. Democracy has had its excesses.
However, realize that the lack of an independent jurist leaves the State to the peril of a vindictive, ambitious, rapacious democracy.
A representative MUST be given the right to speak, to hold constant the Constitution and the State constitution, without the fear of censure from the democratic part when holding true to the Oath that binds him. It provides the independence necessary if he is to perform the responsibility.
A representative MUST be given the right to speak, to hold constant the Constitution and the State constitution to perform the responsibility the People have entrusted him: their natural liberty, and the results of their industry and frugality bound by the Preamble, and Law of Natural Liberty.
“THE second duty of the sovereign, that of protecting, as far as possible, every member of the society from the injustice or oppression of every other member of it or the duty of establishing an exact administration of justice”
“All systems either of preference or of restraint, therefore, being thus completely taken away, the obvious and simple system of natural liberty establishes itself of its own accord. Every man, as long as he does not violate “ the laws of justice”, is left perfectly free to pursue his own interest his own way, and to bring both his industry and capital into competition with those of any other man, or order of men.”2
If we fail at this one point, DO NOT expect much from your efforts of the last ten years.
Ellery, Yes the U.S. Constitution is there to protect us, the only problem with its protection is the fact that anyone who wants its protection has to buy it. If Judges are ruling from the benches and violating a person’s constitutional right’s our Judicial Branch has no jurisdiction to correct a judge, nor will they punish a judge for violating a person’s constitutional right’s, therefore, that person must appeal, appeals comes back they have no jurisdiction, then the people have to file more complaints in other courts. It is an ongoing battle for some who just don’t have the money to pay for justice. There really is no security for us. The Constiution is there, but unless you can afford to spend thousands of dollars in various courts you will not get justice unless you pay for it. So if these judges are violating right’s from the bench it is okay for them to do so as long as you can’t afford to fight back. The whole process is backwards, and I certainly know that our founding fathers did not intend for this to happen.
TO: Brandy Knight:
The founders understood what they were putting down on paper. They provided a reason for scruple by men who have none. The independent jurist was a given at the Convention of 1787. The Jurist serves the Sovereign as he served the King. The People are the Sovereign by Preamble. When the Jurist is independent, our best interest is his best interest. The King had the Tower, we have Impeachment for perfidy; perfidious behavior against our written will, the Constitution. (below)
Currently the concept of the separation of powers is null and void in the State of Alabama. You are correct that having money is the difference, too often, between justice and Law.
That is why it is essential to construct a government in which human beings even with all their passions, fears and prejudices can stand, without the fear of censure, to hold the Constitution constant. Otherwise the current representative democracy nullifies the document with transient Legislation.
Then comes the question of whether a Jurist is making law when his opinion nullifies State legislation that was made contrary to the Constitution in the first place. There are several “shall not make law” clauses in the Constitution. It also has some clauses the begin with “No…”.
Some are constraints over preference in commerce. Some are restraints over preference of another passion. The problem is that the constraints exist because we ratified them for good reasons in 1787. However, they have been nullified for want of education, and there are factions wishing to exploit them for economic gain. Money is money.
The Founders recognized all men to be vindictive, ambitious and rapacious when left without constraints. What checks and balances, they asked, will give scruple to men who have no scruple in their ambitions, and avarice? How and where do the People construct within the Constitution, “The right to speak without the fear of censure”? They devised that check by making the Supreme Court Jurist independent of the passions, fears and prejudices of the democratic part: the mob. They recognized that the independence of the Judicial Branch fortified the Executive Branch against the passion of the Legislative Branch. It is a balancing act with the hope that men, having the Right to Speak, will exercise that Right for the whole of society.
Perfidy: The act of violating faith or allegiance; violation of a promise or vow, or of trust reposed; faithlessness; treachery.
Perfidious: Guilty of perfidy; violating good faith or vows; false to trust or confidence reposed; treacherous; faithless;
Ellery, Wow! You have really said it in a nutshell…we need someone like you to interpret for those who don’t know what they are doing when it comes to the Constitution and what our founding fathers really wanted for our country. I see too many things wrong with this now that I have been able to view the mock draft. I see too many people wanting to purposely misinterpret what our Constitution really means. “We the people”, did not mean the government alone, and that is truly what they are trying to do. They are trying to change things so that everything goes in their favor, and we the people in the end will mean nothing. There were truly some really great people in our history that stood for so much when it came to making our nation what it once was. They worked very hard to develop a great country, and it really makes me sad that our government is trying to ruin the hard work of our founding fathers.
I agree with a nonpartisan election. What the founders wanted was a court system beyond politics. Now, we all know that in today’s climate such would be almost impossible, but nonpartisan designation is a step in the right direction. Why all the talk about “life terms or good behavior”? It is addressed in this constitution through election and the removal process. I am sorry Brandy and Ellery, but I think you are just trying the muddy the water of constitutional reform so desperately needed in this state. Ellery, a primary point in writing is being concise! Please, make your point and move on. Long quotes are unnecessary. Give the reader a reference to read on their own and go on to other points salient to the discussion.
Marjo Gann I am sorry, If you haven’t noticed the water has been muddy for a long time, and it is time to clear up the mess they have made out of our Constitution. When things get too screwed up as they will, this is a paragraph you can look back on. When it gets to the point where they are disrupting your life, your children’s lives, grandchildren etc. and they are following that current muddy constitution or the one they are trying to pass please don’t complain…Grin & bare it like you are wanting me and Ellery to do. God Bless!!
Article. III.
Judicial Branch
(Submitted as a Revision)
Section. 1. The judicial Power of the State of Alabama shall be vested in one supreme Court, and in such inferior Courts as the State Legislature may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under The Constitution of the United States of America, the Laws of the United States, and Treaties made, or which shall be made, under their Authority, and to the Laws of the State of Alabama; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State [Modified by Amendment XI]; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State subdivision shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the State Legislature shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State subdivision where the said Crimes shall have been committed; but when not committed within any State subdivision, the Trial shall be at such Place or Places as the Legislature may by Law have directed.
Section. 3. Treason against the State of Alabama shall consist only in levying War against the State, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Legislature shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Alabama has received general praise for only one article of its existing Constitution and it is the Judicial Article, which of course is an amendment and complete revision of the judicial article in the original 1901 Constitution. Wisely the mock convention did not attempt to make many changes. Please note that Section 19(e) conflicts with Section 4 of the Impeachment Article. I would hope that the Judicial Article working group might be able to persuade the Impeachment Article working group to delete section 4. See my comments on the Impeachment Article.
Section 8(b) of the Judicial Article specifying experience qualifications for judges, while good law, appears to be overly specific and detailed for the Constitution, esp. since Section 8(a) allows the legislature to impose such requirements by statute.
Sec 9(b): should probably read “No judge shall seek or accept any nonjudicial *public* elective office”, just to clarify that this doesn’t apply to election into positions with private organizations. While the reference to “any other office of public trust” might cover this, it’s somewhat disjunctive.
Sec 14: Alabama is in the small minority of states selecting judges by partisan election, and it’s about time that that changed. While an appointment system certainly is far from perfect, it’s way better than an election system, which requires judges to somehow articulate a position on issues without saying how they would actually rule in any one case. It also potentially makes judges beholden to some of their funders.
Sec 17: mandatory retirement at age 70 should be abolished, as it’s insulting and ineffective. Alzheimers can strike people as young as 40, and according to the National Institute on Aging, “In most people with AD, symptoms first appear after age 60.” Conversely, many judges over 70 are completely capable and willing to continue. It makes sense to have a system whereby judges demonstrating mental capacity issues can be removed, but it should not be age-based. I’d wager the AARP would weigh in on this.